Citation Nr: 1224205
Decision Date: 07/12/12 Archive Date: 07/18/12
DOCKET NO. 03-23 659 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a psychiatric disability, claimed as organic brain syndrome.
REPRESENTATION
Appellant represented by: Mark R. Lippman, Attorney at Law
ATTORNEY FOR THE BOARD
David Gratz, Counsel
INTRODUCTION
The Veteran served on active duty from October 1966 to June 1967.
This appeal comes to the Board of Veterans' Appeals (Board) from an August 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Veteran originally requested a personal hearing before a Veterans Law Judge; however, because he is serving a life sentence in a state prison, his appearance at a personal hearing before a Veterans Law Judge is an impossibility, and no additional development is required regarding this request.
This matter was initially before the Board in August 2005, at which time it denied the Veteran's claim currently on appeal. The Veteran appealed the August 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2007 Memorandum Decision, the Court vacated the August 2005 Board decision due to an inadequate statement of reasons and bases in the Board's denial of the Veteran's claim. It remanded the current issue on appeal for further development consistent with its decision. In view of the Court's decision, in April 2009, and again in February 2010, the Board remanded the appeal to the RO for a VA examination and medical opinion concerning the nature and etiology of the Veteran's alleged psychiatric disability and any additional development deemed appropriate. After a determination from the RO that no fee or staff examiners are able to conduct examinations at a prison facility, the Board requested a VHA medical expert opinion in November 2011, which the Board received in February 2012. The case has now returned to the Board for appellate review.
The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required.
REMAND
Pursuant to 38 C.F.R. § 20.903 (2011), in April 2012, the Board furnished a copy of the February 2012 VHA opinion to the Veteran and his representative and allowed a period of 60 days for review and additional argument. In May 2012, the Board received additional argument from the Veteran in direct response to the VHA opinion, which the Veteran indicated he wanted the RO to consider in the first instance.
Accordingly, the case is REMANDED for the following action:
1. Consider the additional argument provided by the Veteran in May 2012 in direct response to the February 2012 VHA opinion.
2. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).